236 F. Supp. 3d 332
D.D.C.2017Background
- Plaintiffs (nine commercial fishing organizations/businesses and three municipalities) sued BOEM and the Secretary of the Interior after BOEM issued a Final Sale Notice and Revised Environmental Assessment (EA) for Lease OCS-A 0512, a ~127 sq. mile offshore area off New York provisionally won by Statoil at auction.
- BOEM’s EA concluded with a Finding of No Significant Impact (FONSI) and assessed only pre‑construction activities (site characterization, surveys, meteorological towers/buoys), not full construction/operation of a wind farm.
- Statoil was the provisional high bidder; lease execution would permit exclusive site characterization rights and eventual proposals (Site Assessment Plan, then Construction and Operations Plan) that trigger later NEPA review (potential EIS) before any construction.
- Plaintiffs moved for a preliminary injunction to halt BOEM from proceeding with the final sale, arguing BOEM violated NEPA and OCSLA by failing to take a “hard look” at environmental impacts and alternatives, and that they would suffer irreparable harms to fishing, navigation safety, and marine habitat.
- The court held a hearing, allowed Statoil to intervene, and denied the preliminary injunction, concluding Plaintiffs failed to show imminent, concrete, irreparable harm necessary for emergency equitable relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs will suffer irreparable harm absent an injunction | Construction/operation will impair fishing access/value, create navigation hazards, and damage marine habitat | Any injury is speculative and years away because construction requires future approvals (SAP, COP, EIS); lease alone does not cause immediate harm | Denied — Plaintiffs failed to show imminent, certain, irreparable harm |
| Whether BOEM’s EA violated NEPA by not assessing construction/operation impacts now | EA was inadequate for not analyzing full project impacts and alternatives/locations | Proper to assess construction impacts later when a COP is proposed; current EA appropriately limited to pre‑construction activities | Court did not decide on merits; found likelihood of success not strong enough to overcome lack of irreparable harm |
| Whether BOEM violated OCSLA obligations to consider impacts on fishing and other uses | BOEM failed to consider interference with reasonable uses (fishing) and alternatives | BOEM followed leasing regulations and will consider detailed impacts in future project‑specific reviews | Not resolved on merits; preliminary relief denied |
| Balance of equities / public interest | Injunction protects fishing and procedural compliance | Injunction would disrupt federal leasing program and public interest in renewable energy; financial/public interests in proceeding | Balance did not tip strongly to either side; weighed against granting injunction given absence of irreparable harm |
Key Cases Cited
- Kleppe v. Sierra Club, 427 U.S. 390 (agency must take a "hard look" at environmental consequences under NEPA)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (preliminary injunction standard requiring likelihood of success and irreparable harm)
- CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (lack of irreparable injury is dispositive for preliminary injunctions)
- Public Employees for Environmental Responsibility v. Hopper, 827 F.3d 1077 (discusses timing and sufficiency of BOEM NEPA review for offshore wind)
- Vermont Yankee Nuclear Power Corp. v. Nat. Resources Def. Council, Inc., 435 U.S. 519 (NEPA prescribes procedural duties, not substantive results)